Social Service Series 



The Administration 
of Justice 

WilUams 


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Is the Concern of All 








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The 

Administration of Justice 


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Mornay Williams 



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Philadelphia 

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THE ADMINISTRATION 
OF JUSTICE 


A FEW decades ago there might have been a ques¬ 
tion whether an essay bearing such a title as this 
had any place in a volume dealing directly with the 
obligations and privileges of Christian men as 
Christians; or, to limit it even more closely by 
confining the discussion to a single denomination, 
the obligations of Baptist men as Baptists. The 
objection, had it been raised, would probably have 
been based on the theory that there were two great 
areas of life, in one of which all men shared, in 
the other of which the Christian only shared, name¬ 
ly, the secular and the sacred. These areas were 
conceived of as separate and distinct. It was the 
duty of the Christian, as far as might be, to dis¬ 
entangle himself from the affairs of this world, 
and to prepare himself for another and better 
world, and his activities in this effort were sacred; 
the remainder of his activities, his necessary rela¬ 
tions as a man, a breadwinner, and a citizen were 
secular, and shared with all men. As we look back 
upon it, it seems a strange misconception for the 
followers of that Divine Master whose last prayer 

5 


6 


Social Service Series 


for his own intimate friends and associates was, 
“ I pray not that thou shouldest take them out of 
the world, but that thou shouldest keep them from 
the evil,” and whose last command to these same 
men was, “ Go ye into all the world, and preach the 
gospel to every creature.” But, after all, it is not 
easy for any of us to escape from that dense 
literalism and dulness of perception which led our 
Lord’s first disciples to read into his references to 
the leaven of the scribes and Pharisees a concealed 
rebuke for their failure to provide a sufficient larder. 

Slowly, very slowly, we are growing to appre¬ 
hend that the gospel is a universal message, the 
kingdom of God an all-comprehending kingdom, 
and the world the object of the Father’s love, the 
Son’s sacrificial quest, and the Spirit’s overbrooding 
influence. 

With such an apprehension of the meaning of 
our faith it must be apparent that the administra¬ 
tion of justice is well within its purview. 

L Justice Defined. 

Justice is the right relation of men to each other, 
as holiness is the right relation of men to God. 
Justice is the ultimate dream of every philosopher 
and philanthropist, the aim of every school of 
ethics or economics, and the object of every code 
of law, but the methods advocated for its attain¬ 
ment and its administration are as diverse as their 
advocates. To the philosophic anarchist the ulti- 


The Administration oj Justice 7 

mate triumph of justice will not be attained till 
every limitation upon individual freedom and initi¬ 
ative is forever done away, to the extreme Socialist 
the like triumph will not be attained till individual 
property is abolished and the rule of all for the 
good of all is the supreme law for each; while be¬ 
tween the extremes of deified individualism and 
supreme socialism there are a thousand different 
schemes proposed. 

To the Christian justice will not be fully done 
until the kingdom of God has come on earth 
and the will of the Father is done on earth, as it 
is in heaven. But the kingdom comes as the plant 
grows, by a vital process which is within men. 
Just as the healthy tree sloughs off portions of its 
growth which have served their purpose and retains 
other portions which harden into wood and be¬ 
come part of its permanent bulk, so the will of God 
in men works out toward the kingdom of God 
among men. This is the true democracy of the 
kingdom of God. 

Now, in this country of ours, we have in theory 
at least, accepted part of this program of the 
kingdom; politically we profess our faith in a gov¬ 
ernment of the people, by the people, for the people. 
We have rejected monarchy, the divine right of a 
king; we have, nominally at least, rejected aris¬ 
tocracy—the superior right of a few (though in 
some quarters the incense burned to plutocracy 
suggests a subtle connection between these modern 


8 


Social Service Series 


idols and the ancient lord of the classic Inferno)— 
and we have accepted democracy, that is the rule 
of the people. But our democracy expresses itself 
through a representative government having its 
executive, legislative, and judicial functions exer¬ 
cised through chosen representatives. 

//. New Definitions Demanded. 

Now, to-day, in the year of grace 1914, there is 
a wide-spread questioning as to the adequacy of 
the present working of the judicial system, that side 
of the government which is specially concerned 
with the administration of justice. Of the extent 
of this questioning there can be no doubt. Not 
only has one political party committed itself to the 
advocacy of the recall of judges and of judicial 
decisions, but from many quarters not political 
there is abundant evidence of great dissatisfaction 
with present conditions. Thus, in the spring of 
1912, the New York State Bar Association ap¬ 
pointed a committee of fifteen to carry on a cam¬ 
paign of education against the movement for the 
recall of judges and judicial decisions, and that 
committee forthwith organized a subcommittee 
especially to investigate the causes underlying the 
dissatisfaction with our judicial system. The chair¬ 
man of this subcommittee, Hon. D. Cady Herrick, 
of Albany, formerly a justice of the Supreme 
Court of the State, in presenting the report of the 
subcommittee, stated that they found that There 


The Administration of Justice 9 

exists throughout the State a profound feeling of 
dissatisfaction with the administration of justice 
(Report New York State Bar Association, 1913, 
p. 214). Nor is this confined to any one State, 
the same feeling is manifest throughout the United 
States, and extends to many spheres of activity and 
affects the federal as well as the State courts. 

This dissatisfaction has relation to many eco¬ 
nomic causes, and was so wide-spread that the mat¬ 
ter was made the subject of action by Congress. 

The Hughes-Borah Act, calling for a national in¬ 
quiry into the underlying causes for industrial un¬ 
rest, was signed in August, 1912, but the names 
sent in by President Taft for members of the Com¬ 
mission failed of confirmation by the Senate, and 
the Commission was not appointed by his succes¬ 
sor, President Wilson, until June 26, 1913. 

The scope of the Commission, as stated in the 
Hughes-Borah Act creating it, is as follows: 

The Commission shall inquire into the general condi¬ 
tion of labor in the principal industries of the United 
States, including agriculture, and especially in those which 
are carried on in corporate forms; 

Into existing relations between employers and employees; 

Into the effect of industrial conditions on public wel¬ 
fare and into the rights and powers of the community 
to deal therewith; 

Into the conditions of sanitation and safety of em¬ 
ployees; and the provisions for protecting the life, limb, 
and health of the employees; 

Into the growth of associations of employers and of 


10 


Social Service Series 


wage-earners, and the effect of such associations upon the 
relations between employers and employees; 

Into the extent and results of methods of collective bar¬ 
gaining; 

Into any methods which have been tried in any State 
or in foreign countries for maintaining mutually satis¬ 
factory relations between employees and employers; 

Into methods for avoiding or adjusting labor disputes 
through peaceful and conciliatory mediation and negoti¬ 
ations ; 

Into the scope, methods, and resources of existing 
bureaus of labor, and into possible ways of increasing their 
usefulness; 

Into the question of smuggling or other illegal entry 
of Asiatics into the United States or its insular posses¬ 
sions, and of the methods by which such Asiatics have 
gained and are gaining such admission, and shall report 
to Congress as speedily as possible with such recommenda¬ 
tion as said Commission may think proper to prevent such 
smuggling and illegal entry. 

The Commission shall seek to discover the underlying 
causes of dissatisfaction in the industrial situation, and 
report its conclusions thereon. 

In the issue of the “ Survey for August 2, 1913, 
a symposium on the work before the Industrial 
Relations Commission was published, in which a 
number of those taking part discussed the relation 
of the courts to the matters involved. Thus, Mrs. 
Florence Kelley, Secretary of the National Con¬ 
sumers League, writing specifically of Courts and 
the Workers,” says: 

There is a rooted conviction among wage-earning people, 
organized and unorganized alike, that the courts of the 


The Administration of Justice 11 

last resort are the all-powerful instrument of the em¬ 
ploying class, selected among its members, and biased in 
its favor in regard to all fundamental industrial relations. 
Wage-earning men and women generally believe that the 
courts of last resort are hostile to them and wholly be¬ 
yond their control. This belief holds equally, whether 
a particular court is, like the Supreme Court of the United 
States and the Supreme Court of Massachusetts, appointed 
for life, or whether it is, like the New York Court of 
Appeals, elected for a long term of years. This belief is 
rooted in the daily experience of wage-earning people 
under those decisions, for instance, which arise in rela¬ 
tion to injunctions. For thousands of citizens these are 
causes of “dissatisfaction in the industrial situation” to 
this day. . . No other single continuing influence affects 
so many diverse elements as the law, civil and criminal, 
under which people live and work. 

There is no final remedy for “ dissatisfaction in the 
industrial situation” save justice. The sense of injus¬ 
tice is wide-spread among working people, organized and 
unorganized, women as well as men, skilled and unskilled 
alike. 

In the same symposium Prof. Henry R. Seager, 
of Columbia University, writing of '' Laws, Courts, 
and Industrial Bitterness,’’ says: 

There is, however, a new element in the situation, and 
this, in my judgment, is a wide-spread sense of the in¬ 
justice of the conditions under which the wage contract 
must now be made. By this I do not mean that any very 
large proportion of wage-earners has come to accept the 
doctrine which Socialists teach—that the whole product 
of industry is due to labor, and ought of right to go to 
the workers. The revolt, as I interpret it, is not against 
the wage system itself, but rather against the legal re- 


12 


Social Service Series 


strictions which in practice hamper wage-earners at every 
turn in their efforts to improve their condition without 
putting any corresponding restraint on their employers. 

III. Inequities of the Injunction. 

A few illustrations will make my meaning clearer. The 
injunction process has been found a highly efficient means 
of breaking a strike. It can be used by employers against 
their employees because they can nearly always persuade 
a court that damage suits against these employees, after 
they have committed unlawful acts which are destructive 
of property, will prove ineffective. It can rarely, if ever, 
be turned against employers, because it can usually be 
urged that they will be able to respond in damages and 
that, therefore, there is no need for this extraordinary 
means of compelling them to respect the property rights 
of others. A legal remedy which may be used by one side 
in an industrial dispute and not by the other, naturally 
seems to the other unfair. 

Again, wage-earners know that to succeed in strikes 
for higher wages or shorter hours they must control a suf¬ 
ficient proportion of the available workers in the trade 
to bring it home to the employer that they are necessary 
partners in his business. From their point of view, there¬ 
fore, efforts to strengthen their unions, through strikes 
to prevent the employment of non-unionists, or “ scabs,” are 
as necessary and proper as efforts to secure higher wages 
or shorter hours directly. When the courts tell them that 
they may strike for better conditions, but if they strike to 
strengthen the union they are guilty of conspiracy, they 
feel that the law is illogical, arbitrary, and designed, while 
seeming to concede to them the right to united action, 
really to prevent their united efforts from being effective. 

Another distinction the law draws which seems to them 
unfair is that between strikes and boycotts. One way in 


The Administration of Justice 13 

which the obdurate employer may be made to respect the 
right of his men to organize is by inducing his customers 
to withdraw their patronage unless he treats his em¬ 

ployees in a manner that seems to these customers fair. 
Trade-unionists see no reason why, feeling as they do in 
regard to the right of wage-earners to organize, they 
should not refuse to patronize an employer who denies 
them this right. To make such refusal effective, they 
think that they should be allowed to publish the names of 
“ unfair ” or “ we-don’t-patronize ” employers in their 
union journals. The view that this constitutes a conspiracy 
seems to them to involve a denial of their liberty to 

patronize whom they choose. When this view of the boy¬ 
cott crystallizes in an injunction, for the alleged violation 
of which such a widely revered labor leader as John 
Mitchell is threatened with fine and imprisonment, it 
becomes, to their minds, an intolerable instrument of 

tyranny. 

Finally, the application of the federal anti-trust act to 
labor combinations strengthens wage-earners in their be¬ 
lief that for whatever purpose a law may be framed the 
courts will be certain to turn it against them rather than 
against their employers. Under that statute the United 
Hatters are liable to pay damages to the amount of 

$240,000 for acts which their consciences fully approve, 
while the Standard Oil Company, the trust most frequently 
referred to when the act was under consideration in Con¬ 
gress, has escaped with an order to dissolve, obedience to 
which has served only, so the wage-earner argues, to en¬ 
hance greatly the value of its constituent properties. 

It is these anomalies in our law as it applies to wage- 
earners which are, in my opinion, chiefly responsible for 
the bitterness which American working men feel toward 
their employers, and the readiness with which they turn 
from lawful to unlawful, and even criminal, means to 
secure their ends. Nothing is so fatal to a law-abiding 


14 


Social Service Series 


disposition as a conviction that the law itself is unjust or 
that its administration is unfair. 

These quotations will serve to show not only how 
wide-spread is the dissatisfaction, but also how 
deep-rooted in the minds of many is the prejudice 
against the working-out of our present judicial 
system, and it would seem that they should be suf¬ 
ficient, moreover, to make clear the necessity for 
study on the part of Christian men of the question 
of the administration of justice—what the present 
system is, how it came into being, what are its 
merits and demerits, and how and in what respects 
it can be amended. Surely no careful student of 
the Bible needs to be reminded that economic and 
industrial injustice in ancient Judah and Israel 
awoke the wrath of Jehovah and stirred his proph¬ 
ets, like Isaiah and Habakkuk and Amos and Micah, 
to flaming denunciations of unrighteousness, and 
that the apostle James, writing as a servant of God 
and of the Lord Jesus Christ, finds it not incon¬ 
sistent to comment with bitter severity on the 
evils of a dishonest wage system. Now, whether or 
not the strictures on the present judicial system 
above quoted are just, it must be apparent that they 
are significant, and are deserving of careful con¬ 
sideration. 

IV. Defects in Legal Procedure. 

In the limits of such a chapter as this it would be 
alike impossible and undesirable to attempt any- 


The Administration of Justice 15 

thing like a thorough or technical study of the 
history and theory of jurisprudence, or the consti¬ 
tution and practice of our courts; only a few broad 
and leading principles can be hastily outlined, and 
an attempt made to discover, if possible, at what 
points to look, if anywhere, for flaws in that ma¬ 
jestic body of law which has been built up in the 
slow process of centuries as the Common Law of 
England and America. 

As long as there is injustice—wrong relations 
between man and man—there must, in civilized 
society, be courts and judges, places and persons 
for the hearing and determining of complaints, the 
enforcement of law, and the discipline of wrong¬ 
doers. Broadly speaking, there will be two great 
classes of cases to be brought before these courts, 
civil and criminal cases, civil cases being con¬ 
troversies arising between private citizens, and 
criminal cases offenses, or alleged offenses, against 
the body politic. Now, while no general state¬ 
ment can be made to which many exceptions may 
not be found, it is generally true that the demo¬ 
cratic genius of our law as derived from England 
has nowhere more strongly manifested itself than 
in importing into the determination of both civil 
and criminal cases the institution of the jury; 
that is to say, a number of men called from the 
general mass of the citizens—not selected, like 
judges, from the trained ranks of the lawyers—to 
whom the determination of the facts in issue are 


76 


Social Service Series 


left. In criminal cases, when the charge is a 
serious one, the Grand Jury, after hearing an ex 
parte statement of the charge, must bring in an 
indictment before the alleged offender can be 
placed on trial; and in all but minor criminal cases 
and in all such civil cases as are denominated 
“law” as distinguished from “equity” (a dis¬ 
tinction to which allusion will later be made) a 
petit jury must pass on the facts before final judg¬ 
ment can be rendered. This institution of the jury, 
which is, perhaps, the most striking difference be¬ 
tween the judicial system of England and the judi¬ 
cial systems of continental Europe, while it is in¬ 
creasingly criticized for its cumbersomeness and 
dilatoriness, has been in the past the great con¬ 
servator of liberty. 

The theory of the administration of justice in 
Europe has been that the determination of con¬ 
troversies and the enforcement of law, either civil 
or criminal, should be in the hands of trained men 
always; that the examination of alleged criminals 
before trial should be conducted by legally trained 
officials, and that the trial itself should be before 
judges trained for the office. This was the theory 
of Roman jurisprudence and has come down largely 
in the laws of the various states of Europe which 
have received their chief sources from ancient 
Rome. It is a theory that works well in the main¬ 
tenance of order, and in countries where the mon¬ 
archical form of government is adopted has proved a 


The Administration of Justice 17 

bulwark of law and order, but it is inconsistent with 
the democratic theory of government, not because 
judges are essentially corrupt, but because the class 
theory and the division between orders in society, 
which flourish under a monarchical system, are out 
of place in republics. In English jurisprudence 
there are clear indications of the attempt to graft a 
part of this theory upon the democratic ideal which 
distinguishes the common law of England. In the 
English courts of common law the petit jury is 
a distinctive feature, but there arose in England a 
demand for the treatment of certain cases not em¬ 
braced in the complicated and extremely technical 
procedure of the common law courts, and to meet 
this demand the Court of Chancery came into being, 
dispensing what was called “equity,” as distin¬ 
guished from “ law.” It is neither necessary nor 
best to enter into the history of the development of 
the Court of Chancery, in which, originally, the Lord 
Chancellor, who bore the curious title, not only of 
Keeper of the Great Seal, but of Guardian of His 
Majesty’s Conscience, dispensed an equitable jus¬ 
tice, which did not necessitate, except in rare cases, 
calling in the aid of the jury. In some ways this 
development was a wise one, intended to aid the 
administration of justice, but it very easily became 
the channel for the development of a theory of 
jurisprudence more nearly approximating the 
European theory than the Anglo-Saxon. In the 
Court of Chancery, or of Equity, developed the 


18 


Social Service Series 


policy of granting injunctions, a policy which in 
some cases worked very well, and seemed to meet 
a need not provided for by the common law system. 
The original theory of the injunction was that it 
was the exercise of a peculiar power which the 
chancellor derived, theoretically, from the Sov¬ 
ereign, the King, and which could only be availed 
of in the case of probable loss when the general law 
did not provide an adequate measure of damages; 
in such cases the injunction could be resorted to to 
prevent the occurrence of the loss. But it will be 
seen by a very slight examination that some of 
the difficulties so clearly stated by Professor Seager, 
in the paragraphs above quoted, have arisen in con¬ 
nection with this very power of granting injunc¬ 
tions. In fact, there is probably no single legal 
process which is so much criticized by working 
people as the supposed misuse of the injunction. 
Now it ought to be clear to the average citizen, as 
it is to the lawyer, that this does not arise from any 
corrupt or intentionally unfair use of the power 
vested in judges by the law, but, as far as there 
is any just criticism of the use of the power of 
granting injunctions and punishing those who dis¬ 
obey them for contempt of court, the error arises 
from the fact that the judges very rarely are in a 
position to be in sympathetic touch with the work¬ 
ers. It can be affirmed, without danger of success¬ 
ful controversy, that the judges, as a whole, desire 
to serve the ends of justice for the good of the 


The Administration of Justice 19 

country, but the very conditions of the special 
training, which is very properly prescribed for 
them as a condition for their admission to the bar, 
teach them to be conservative, to regard precedent 
as, if not controlling, at least of great weight, and 
to lean, in case of doubt, rather toward the main¬ 
tenance of existing conditions than toward any 
radical change. It is this that has made, in all coun¬ 
tries, the courts the conservators and guardians of 
liberty and of stability, but it is equally clear that 
because of this training and of the fact that they 
are not themselves drawn from the manual workers 
and industrial workers, judges have not the ability 
in any large measure to comprehend the relation of 
new developments in the industrial world to the 
lives of the workers, and are not able, therefore, to 
respond quickly to the demands of the people for 
industrial justice. 

V. The Revieiv of Judicial Decisions. 

To those who smart under what they conceive 
to be the unfairness of the judges, the easiest 
method of curing this evil seems to be to subject 
the judges themselves to the process known as the 
recall; that is to say, to permit the term for which 
a judge has been elected, or appointed, to office to 
be shortened summarily by popular vote, if his de¬ 
cisions do not please the majority of the voters at a 
succeeding election within the territory over which 
his jurisdiction extends; and also to permit a popu- 


20 


Social Service Series 


lar vote to defeat an opinion rendered by a court, 
for this is substantially what the recall of judicial 
decisions means. The remedy is certainly drastic 
enough, though not more drastic than that which 
perhaps the earliest of English law-books affirms 
was resorted to by the great English king, Alfred 
the Great, of whom it is affirmed in the “ Mirror 
of Justices ” that in one year he caused forty-four 
of his justices to be hanged because of his dis¬ 
pleasure with their decisions; but the recall of 
judges, like the hanging of judges, is too drastic 
and unfair a method of correcting supposed judi¬ 
cial abuses to commend itself to sober judgment. 
It ought to be perfectly apparent that the effect of 
it would be, on any but the most heroic of judges, 
to induce him, if he had any desire to remain in 
office, to regard the will of the majority as his 
supreme law, rather than his own conception of 
justice or right, while at the same time it would 
not furnish him with any previous training, other 
than he has at present, to determine whether that 
will of the majority were just or unjust in a par¬ 
ticular instance. What is needed is not hastily to 
remove men from office, but to devise some method 
by which, without losing any of the qualities which 
have so far made the judiciary the noble con¬ 
servator of liberty and right that it has been 
hitherto, the judges may be kept in touch with the 
actual facts as to living conditions in the case of 
large masses of people, giving them a point of 


The Administration of Justice, 2! 

view which it is not now possible for them to 
secure. 

This is particularly the case in the class of 
troubles to which Professor Seager alludes. And 
here, as it seems to the writer, the departure from 
the principle of democracy is significant. The 
workers represent far more largely than the 
lawyers, or even the employers, the great mass of 
the people, and some method should be devised 
by which the condition of the workers—their eco¬ 
nomic status as to wages, living conditions, hygiene, 
etc., should be brought before the judges, or, per¬ 
haps, better still, the facts as to these questions be 
found by representatives of the workers, just as 
the facts are found by a jury in a private con¬ 
troversy. To say this is in no sense to reflect on 
the judges. The question as to the character of 
the judges will be discussed a little later, and also 
various ways of preserving the high ideal that 
should characterize candidates for judicial office, 
but the emphasis to be placed here is upon the de¬ 
sirability that the actual facts which call for the 
exercise of judicial judgment should be found by 
members of the common people. The objections 
which will undoubtedly be made to any plan look¬ 
ing to such a solution would be based upon the 
well-known cumbersomeness of the jury system as 
at present existing, but these objections are entirely 
outweighed by the more important considerations 
of the freedom conserved by the jury method, and 


22 


Social Service Series 


the fact that the recognition of the common people as 
factors in the judicial branch of government tends to 
check the growing feeling of distrust on the part of 
the people as a whole toward that branch of govern¬ 
ment. There is no more serious danger to free insti¬ 
tutions than the growth of class feeling. It is a 
fatal danger. However learned, upright, and wise 
the judicial class may be, anything which tends to 
put them out of relation to their fellow citizens is 
for them a tendency in a wrong direction; and on 
the other hand, there will be manifested toward a 
class thus segregated a growing distrust and hos¬ 
tility, even if wholly undeserved, by the great mass 
of the people who are not included in the class. 
The jury system, therefore (and, by parallel rea¬ 
soning, some similar method of ascertaining the eco¬ 
nomic facts touching all the questions which lie 
at the bottom of the dissatisfaction with the pres¬ 
ent judicial system), is the logical method of pre¬ 
venting a popular outburst against the courts. 

VI. Dissatisfaction With Courts. 

Next to the dissatisfaction arising from the sup¬ 
posed misuse of the injunction, the largest element 
of dissatisfaction with the decisions of the courts 
has arisen apparently from the fact that a number 
of statutes, both federal and State, which appeal to 
the mass of the workers as desirable, which have 
been passed by the legislative branch, of the State 
or federal government as the case may be, and have 


The Administration of Justice 23 

been approved by the executive, were declared un¬ 
constitutional by the judicial branch of the govern¬ 
ment—thus, in the popular mind, setting the latter 
branch of the government over against the other 
two branches of the government. Now, to the 
lawyer, it is perfectly clear that this state of affairs 
may come about without the slightest reflection on 
the integrity or learning of the bench. The same 
considerations that have been already alluded to 
as making judges a class apart have power here. 
The courts as interpreters of the Constitution (a 
necessary function, of course) are by force of 
their office constrained to declare statutes uncon¬ 
stitutional, which seem to them in contravention 
of the written constitution either of State or of 
nation. It happens that many of the statutes 
which have thus excited popular interest have been 
declared by the courts unconstitutional as abridg¬ 
ing the freedom of contract, or rights of property, 
carefully guarded in both State and national con¬ 
stitutions by what has come to be known as the 
Bill of Rights.'’ Yet the courts have repeatedly 
given to particular branches of the government, 
such as a State or National Board of Health, the 
right, in the interest of public health, to set aside 
quite as serious rights of the individual or of 
property. The theory, for instance, that a man has 
the right to the use of his own house, and that a 
search cannot be had without a search-warrant, 
must give way when it appears that there is a case 


24 


Social Service Series 


of contagious disease. The health officers have a 
right of entry, and the right to take away the dis¬ 
eased person. And this is only one of countless 
cases in which the superior right of the State, popu¬ 
larly known as its police power, over the individual 
and his property, is recognized. Now the same 
right could have been exercised in favor of many 
of these statutes which have been declared uncon¬ 
stitutional, if the courts had had before them a 
body of facts as to conditions of health and public 
morals which would justify the intervention of the 
police power of the State as against the right of the 
private individual. In most of the cases referred 
to the courts have had no such body of facts to 
which they could refer, and were compelled by the 
necessity of the case to decide against the constitu¬ 
tionality of a particular act, because, without such 
evidence, they could not escape the conclusion that 
it was a clear contravention of the written consti¬ 
tution. While, of course, this is no place in which 
to enter upon a discussion of special cases, it might 
be well to point out that the decision of the United 
States Supreme Court (198 U. S., 45) reversing 
the case of the People against Lochner (177 N. Y., 
145), was what it was because the court felt itself 
forced to adopt this view of the statute, not hav¬ 
ing before it, as it did have in the subsequent 
case of Muller vs. Oregon (208 U. S., 412), a body 
of facts showing conditions that allowed it to in¬ 
voke the police power of the State on behalf of 


The Administration of Justice 25 

the workers. The lawyers themselves seem to ad¬ 
mit that something along this line ought to be 
attempted, though the particular remedy here sug¬ 
gested has, as far as the writer is aware, not been 
suggested by any but himself, but in the report of 
the subcommittee of the Committee of Fifteen on 
the dissatisfaction with our judicial system above 
referred to, the second recommendation made by 
the subcommittee is: 

That when the constitutionality of a statute is brought 
in question it shall be the duty of the attorney desiring 
to raise such question to serve notice thereof upon the 
attorney-general of the State, together with a copy of 
his brief, at least twenty days before the trial or hearing, 
and that the attorney-general be permitted to intervene 
upon any trial or hearing, in any court of original or 
appellate jurisdiction, in support of the constitutionality 
of such statute. 

The difficulty with this suggestion is that it 
refers the whole matter to the attorney-general, 
himself a lawyer, and does not bring in the popular 
element. If in such cases as these a commission 
could be appointed to take testimony and report 
the facts, then, without interfering with the power 
of the judge, it would be possible to obtain a point 
of view which the lawyers alone could not give. 
In a similar way provision could be made that in 
case of an application being made for an injunction 
directed against a large body of laboring people, a 
labor union or similar organization, the injunction 


26 


Social Service Series 


should not be granted until the court had referred 
the matter at issue to a similar commission and had 
received a report on the facts. It is true that both 
of these remedies are in the nature of dilatory 
remedies, but in this case the delay is for the pur¬ 
pose of obtaining the point of view of the common 
people, and the cumbersomeness of the remedy and 
the delay are atoned for by the advantage of its 
popular character, and to the writer, at least, seem 
to be far preferable to any proposal to subject 
judges to the intimidation of a recall, or judicial 
decisions, as such, to a popular repeal. 

The character of remedy here suggested is in¬ 
tended to preserve the office and dignity of the 
judge. Perhaps no better statement of what that 
office and that dignity are can be found than that 
contained in an old manuscript reprinted a few 
years ago by the Selden Society, and edited by 
the late Frederick W. Maitland, who ascribes the 
authorship of the manuscript in question to a cer¬ 
tain Brother John of the Priory of Luffield in 
England, writing probably about the year 1280. 
The manuscript appears to be a manual or guide 
for the use of magistrates holding baronial courts, 
and this old English monk undertakes to define 
what the duty of a judge is. His estimate is very 
high, and it is worth remembering, if simply as a 
statement of what the conception of its dignity was 
six or seven centuries ago. The original Latin 
appears in a footnote. Here is the translation: 


27 


The Administration of Justice 

Also he should know that to the best of his power he 
ought to determine all suits justly and speedily, and 
cause all defaults to be amended, which are within his 
power, and patiently hear the plaints of all plaintiffs and 
maintain the poor, nor for price, nor gift, nor for hope 
of gain, should he do wrong to any or judge amiss, but 
he should be true in word, just in judgment, wise in 
council, faithful in trust, strenuous in (deed), eminent in 
kindness, and excellent in all honorableness of life, for 
thus he may render to Caesar the things that be Caesar’s 
and to God the things that be God’s, and his judgment 
shall endure for ever, and his name be in praise, and so 
from his little bailiwick he shall be transferred to a 
kingdom by Him who taketh the needy from the dust 
and lifteth up the poor out of the mire, and so he may 
sit with princes and hold a throne of glory.^ 

An office so conceived needs no further statement 
as to its dignity. As a matter of fact, the judges of 
England and America, and many of the lawyers, have 
included some of the noblest names in the history 
of the two countries. The annals both of England 
and America would be poorer if the names of Sir 
Matthew Hale, Sir William Blackstone, Lord Coke, 
and Lord Mansfield in England, and Mr. Justice 
Marshall, Mr. Justice Story, Chancellor Kent, and 
many others in America were withdrawn from the 

1 Item sciat quod in quantum potent omnes querelas justo judicio terminare 
festinanter et delectus facere emendare, quse sunt sub potestate sua, et querelas 
omnium conquerencium pacienter audire, pauperes sustentare, nec prece, pre- 
inio, nec spe lucri alicujus injuriam facere vel male judicare tenetur, sed sit 
in sermone verax, in judicio Justus, in consilio providus, in commisso fidelis, 
in . . . strenuus, in bonitate conspicuus, et in universa morum honestate prae- 
clarus, quia sic potest reddere quae sunt Caesaris Caesarii et quae Dei Deo, 
judiciumque ejus stabit in eternum ac erit nomen in laude, et sic de balliva 
parva in reqnum transfert ilium qui suscitat de pulvere e^enum et de stercore 
erigit pauperem ut sedeat cum principibus et solium gloriae teneat. 


28 


Social Service Series 


roll of judges. Scarcely less illustrious is the roll 
of lawyers, advocates, and champions of popular 
liberty, like John Selden, Lord Erskine, Daniel 
Webster, Rufus Choate, and Abraham Lincoln, to 
name but a very few. To strike, then, any blow at 
the integrity of the courts would be a most serious, 
and, in the long run, disastrous achievement. To 
modify existing difficulties and to remove undemo¬ 
cratic tendencies is, on the other hand, a most 
necessary and salutary undertaking, and one which 
should enlist the interest and careful thought of 
all Christian men and all good citizens. It is not 
a question which has reference to a class in the 
community, but to all the citizens in the community, 
and every citizen ought to be willing to offer up on 
behalf of the judges and lawyers, if not on his own 
behalf, the prayer for lawyers ascribed to Dr. 
Samuel Johnson: 

Almighty God, the Giver of wisdom, without whose 
help resolutions are vain, without whose blessing study 
is ineffectual, enable me, if it be thy will, to attain such 
knowledge as may qualify me to direct the doubtful and 
instruct the ignorant, to prevent wrongs and terminate 
contentions; and grant that I may use that knowledge 
which I shall attain to thy glory and my own salvation; 
for Jesus Christ’s sake. Amen. 

VII. Higher Ideals of Law. 

If the office of judge be conceived of in this high 
and noble fashion, it must be clearly apparent that 
it is the duty of Christian men to take every pre- 


The Administration of Justice 29 

caution possible to see that the ranks of the judges 
are recruited from men who have in view the high 
and holy purpose which such conception of the 
office demands. To this end it must be apparent 
that not only should the office of a judge never be 
made the prize of party politics, but that the ranks 
of the lawyers from whom the judges are recruited 
must be kept, as far as possible, up to a very high 
standard, and that the masses of men must insist 
on a view of the legal profession quite different 
from that ordinarily held. Business men, as well 
as lawyers, are to blame for the fact, which is un¬ 
fortunately indisputable, that the profession of the 
law has been commercialized; that it is regarded 
both by lawyers and men outside of the profession 
as largely a means of earning a livelihood, and not 
as a vocation of a very lofty sort. In a recent 
article on “ The Passing of the Legal Profession,” 
appearing in the “ Yale Law Journal ” for June, 
1913, Mr. George W. Bristol has pointed out a 
number of reasons why the profession is losing 
caste, and not only losing caste, but losing power. 
He opens his interesting article by stating that one 
of the largest, if not the largest, association of 
lawyers in this country, recently dropped from its 
roll eight hundred and sixty-nine members for fail¬ 
ure to pay their annual dues, and that the report 
of the association states that many of these men did 
not desire to be dropped, but could not spare the 
moderate amount of ten dollars per year as dues. 


JO 


Social Service Series 


He then goes on to discuss a number of ways in 
which the work formerly done by lawyers has been 
taken up by various corporations who employ law 
clerks. But while all this is true, it is by no means 
the whole of the case. The lawyers themselves 
have, in too many cases, wholly failed to conceive 
of the profession as an opportunity for service to 
the people, and have treated it as though it were 
merely an opportunity for money-making. There 
is an immense difference between the point of view 
of the law expressed by Edmund Burke, when he 
defined law as “ benevolence by rule,” and the point 
of view expressed by Aaron Burr, when he defined 
the law as whatever is boldly asserted and plaus¬ 
ibly maintained,” but the latter definition, cynical 
as it is, only too truly represents the ethical code 
of many practising lawyers. With them, success 
in the winning of a case, or, more frequently, the 
settlement of a case, wholly irrespective of the 
merits of the case, represents ability and success at 
the bar, and, of course, such a view of the pro¬ 
fession tends to degrade it, and, consequently, to 
reduce the level of the profession from which the 
judges are drawn. The judges themselves are 
naturally drafted from the supposed successful mem¬ 
bers of the profession of the law, and if success in 
the profession is measured on a false standard, the 
character of the bench, as well as the character of 
the bar, will be lowered. It is, therefore, the part 
of every Christian man and every good citizen to 


The Administration of Justice 


31 


do everything in his power to set forth a higher 
ideal for the lawyers, and to demand that candi¬ 
dates for the bench shall be shown to have illus¬ 
trated this ideal in their own history as lawyers. 
And let it not be thought that this is an alien or a 
needless task. On the contrary, the words of our 
Lord himself, addressed to the lawyers, have a 
present-day application: 

Woe unto you, lawyers! for ye have taken away the 
key of knowledge: ye entered not in yourselves, and them 
that were entering in ye hindered. 

The kingdom of heaven is the inheritance of all 
men, and the kingdom of heaven is a kingdom of 
law. The lawyers who have such a conception of 
their profession as that expressed by Edmund 
Burke in the words before quoted, hold, at least, 
one of those keys; but if they enter not in them¬ 
selves, by that very omission they hinder others 
from entering in, and the kingdom fails for all men, 
because those who should swing wide its portals, 
close them. 



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